Notwithstanding of diligence, a bankrupt may grant bond for borrowed money.
Click here to view a pdf copy of this documet : PDF Copy
There being mutual reductions betwixt Monteith and Anderson, the former having right to an apprising, led in anno 1619, and the other, Mr John Anderson, having adjudged in anno 1656, Mr John Anderson insisted on this reason, that Monteith's apprising proceeded, (was) on a sum of 5000 merks, due by James Nisbet, the common debtor, to Gilbert Gourlay, after that James was rebel, at Mr John Anderson's author's instance: After which, no bond granted, could prejudge the other creditor, having used diligence before; but the bond is null by the act of Parliament 1621 against bankrupts.—It was answered for Monteith, That that act was only against fraudulent dispositions, between confident persons, without cause onerous: But here a bond of borrowed money was onerous, and no man was thereby hindered to borrow money.—Anderson answered, That the narrative of the rebel's bond, bearing borrowed money, could not instruct against a creditor using prior diligence.
This the Lords repelled.
Anderson insisted upon this reason, That Gourlay's bond was granted by James Nisbet, James and William Arnots, all conjunct principals, without a clause of relief; and this bond was assigned by Gourlay, with this express provision, that no execution should proceed thereupon, or upon the bond, or inhibition against the Arnots; and so if the assignee had been pursuing James Nisbet for all, he might have answered, that the assignee had accepted his assignation, with this provision, that James Nisbet could not use execution against the other two co-principals; and therefore he being excluded from his relief, could be only liable for his third part, for he would not have subscribed the bond, but upon consideration of his relief.—Monteith answered, That all the three principals being bound conjunctly and severally, the creditor might renounce all execution against two of them, and yet crave the whole from the third; and there was no more done in this case; and albeit there be no clause of mutual relief expressed, yet hoc inest de natura rei: So that albeit Nisbet, by virtue of the assignation, though it had been transferred to him, could not have pursued the two Arnots; yet by the obligement of mutual relief implied he might, not as assignee, but as coreus debendi.—Anderson answered, That if the clause had born only a provision, that no execution should pass upon the assignation, it might have been consistent; but it bears, that no execution should pass upon the assignation or bond.
The Lords found, That the obligement of mutual relief was implied, where parties were bound conjunctly and severally, albeit not expressed; and that the provision related only to the bond, quantum ad creditorum, and did not restrict the implied obligement of the co-principal, and therefore repelled this reason also. (See Debtor and Creditor. See Proof. See Cautioner.)
